Most developers are aware that even the most benign proposals come with the risk of litigation. A project may have significant environmental impacts or local residents may be vocal in their opposition. A savvy developer knows it is important to invest in relationship-building at the outset of a project. Holding collaborative meetings with local decision-makers and becoming informed on the municipalities’ long-term priorities is essential before even applying for a building permit. As a developer, starting from an informed position indicates you are receptive to community wants and needs and will often make the approval process smoother. This helps keep the risk of litigation low.
Litigation, as anyone knows, is often time-consuming and costly. Even if it ends in a decision that is in the developer’s favor, the resulting negative press and increased cost expenditures may make a lawsuit not worth the headache. Of course, it’s often hard to anticipate every possible challenge and pitfall you may come across. While it usually makes good business sense to avoid litigation; sometimes you may need to go on the offense.
Does The Municipality Agree With Your Vision?
Oftentimes the first step in getting a development approved is appearing before a local planning board. If you need a variance, you will have to appear before the zoning board, or ZBA. This is where it becomes essential to do your research or be partnered with a knowledgeable land use attorney. A local ZBA will evaluate the Building Inspector’s determination or review a referral from the Planning Board. If the ZBA does not grant your variance, you can always litigate by filing an Article 78 petition. However, being successful in that instance is a high bar. Courts give great deference to the decision-making power of local administrative boards. The standard for getting a decision overturned is that the board’s decision was “arbitrary and capricious”. If a board evaluated your application and made its decision in a reasonable manner, you may have hard time being successful in court. The best way to avoid this is to be cognizant of past ZBA interpretations as well as being prepared to revise your proposal if necessary, in order to get approvals.
Will the Planning Board Make You “Start Over”?
Another challenge that may lead to potential litigation is by revising your proposed development to the degree that the local planning board essentially requests you start over. Some developers change their project substantially during the approval and permitting process, it’s often part of the back-and-forth between a planning board and an applicant. Significant construction delays or forceful community opposition to an element of the project can cause you to reconsider the original proposed site plan. However, a material change in plans can result in a previously approved project having to start all over in terms of environmental reviews, which can be costly. Whether to restart the review process can be a matter of informed opinion. A wise developer wants to ensure he or she has informed, prepared attorneys and consultants that can discuss with local planning boards why the environmental review process should not be restarted. This is also an example where, if the board decides against you, litigation may be necessary to protect your rights and ensure you do not have to go back to square one.
Do You Need to Sue to Protect Your Rights?
Developers can run into challenges when Planning Board memberships change over time. Some board members are more passionate about aspects of development than others and others are simply more informed. If your project is denied and you are evaluating whether to litigate or not, you really need to analyze the substance of the denial. Did you as a developer fail to show that you can mitigate all negative impacts or are the denials based on speculative concerns? You have rights as an applicant, and you may need to litigate to protect them.
Did You Take A Hard Look?
Another avenue that can lead to litigation is community opposition to a project. You may receive your approval from the Planning Board and be ready to put shovels in the ground; however, enough aggrieved residents can take you to court. The SEQRA process, New York State’s environmental review process, requires that a Planning Board take a “hard look” at a project’s environmental impact. This “hard look” is often at the heart of litigation between developers and community groups, so make sure you are prepared throughout the approval process with adequate environmental studies and experts. Make sure you take your own “hard look,” so to speak, so you are ready for any challenge.
Are You Subject to a Moratorium?
Another challenge that developers have come across is when a municipality decides to implement a moratorium on certain types of developments. In some instances, developers who have invested substantially in a project may find that the municipality has decided their project is subject to a moratorium. This is an example of when litigation may be the most appropriate response. Municipalities have been able to use moratoriums as a stop-gap to halt certain developments while they evaluate changes to their zoning code or consider updates to their comprehensive plan. The standard for a moratorium is that it must “reasonably designed”. It is that “reasonable” word that has been the subject of litigation, and many developers have been successful in showing that municipalities have not been reasonable.
Fundamentally, litigation has a role to play in development. While you want to be prepared and engaged throughout the approval process to avoid litigation, it occasionally may be necessary to protect your rights and investment. We live in a beautiful state and, as a developer, you are key to keeping it that way.
This is not intended to be legal advice; you should contact an attorney regarding your specific situation.
This article appeared in the Spring 2026 edition of the Sullivan County Partnership’s In the Know Magazine and the full publication can be found here. https://issuu.com/partnershipecondev/docs/in_the_know_spring_2026_-_sullivan_county_partner?fr=sMzljNjg0NTU5NDA
Maria C. Donovan is an associate at J&G Law concentrating in land use and municipal law. She can be reached by phone at (845) 764-9656 or by email.